Dharam Singh vs State of Punjab

J.S. Sekhon, J.

The grouse of the petitioners in this writ petition is that the Collector, Additional Commissioner as well as the Financial Commissioner while declaring the surplus area of land of the petitioners had not calculated the permissible area under Section 5 of the Punjab Land Reforms Act, 1972 qua projected intensity of irrigation of the land while converting into first quality land in accordance with rules 8 and 9 read with Schedule A of the Punjab Land Reforms Rules, 1973 and that as the surplus area of the petitioners declared under the Punjab Security of Land Tenures Act remained unutilised till the filing of the writ petition, the landowners are entitled to choose their permissible areas for themselves as well as for their adult sons and family members under Sections 5 and 7 of the Land Reforms Act.

The brief resume of the facts relevant for the decision of the writ petition is that Dharam Singhpetitioner is the original owner of land measuring 1311 kanals 14 marlas located in the revenue estate of village Jandpur, Bani Lodhi, Panjore, Haran and Ranipur in Tehsil Pathankot, Distt. Gurdaspur. The Collector Agrarian vide his order dated January 18, 1960 passed under the Punjab Security of Land Tenures Act declared 40 standard acres and 111/2 units out of this area as surplus. According to the petitioners the so declared surplus area remained unutilized till the filing of this writ petition. Thereafter, the Punjab Land Reforms Act, 1972 came into force with effect from 24.3.1973. Dharam Singh petitioner only filed a declaration independently in form A under Rule 5 of the Punjab Land Reforms Rules, 1973 declaring that he owned 1311 kanals 14 marlas of land in village Jandpur and had three adult sons. The collector converted the land holding of the petitioner into first quality land which came to 48.83 hectares. Taking the total members of the family of Dharam Singh petitioner being 10 including three adult sons, the Collector calculated that each of the adult son was entitled to 7 hectares of land and the remaining seven members of his family were to be taken into consideration for the purpose of allowing the permissible area to the family. Thus the father and three adult sons were held to be entitled to retain area to the extent 28 hectares while two additional members of the family were entitled to retain 2.80 hectares. By holding so, the Collector declared 30.80 hectares of land as permissible area of Dharam Singh and his family members while the balance of 18.03 hectares was declared surplus area. On appeal by the landowners, the Additional Commissioner Jullundur Division vide his order Annexure P7 dated September 8, 1977 accepted the appeal and remanded the case to the Collector to decide it a fresh in the light of the following directions :

"(1) He should verify as to how much surplus area is included in the return filed by the appellant. This area should be excluded from the return before processing it.

(2) He should also verify the character of the land said to have been transferred by the appellant to his sons before 15.4.1971. The Collector should discuss whether clubbing the land of the sons with the land of the appellant or taking the same separately will make any difference to the parties concerned.

(3) The Collector should have extracts from the Khasra Girdawari place on the file for crosscheking the reports of the field staff."

The Collector Agrarian after rehearing the parties and examining the record again decided the case of the petitioners on January 17, 1978 vide order Annexure P1 holding that the surplus area in the hands of Dharam Singh was 40 standard acres and 11/1/2 units while in the hands of Karam Singh and Balram Singh petitioners it was 11.12 hectares in all. The Collector Agrarian, however, upheld the transfer of land by Dharam Singh Petitioner in favour of his sons Karam Singh and Balram Singh petitioner in the year 1950 i.e. before the Punjab Security of Land Tenures Act, 1953 came into force. The landowners then went in appeal before the Additional Commissioner against the above referred order of the Collector. The Additional Commissioner vide his order Annexure P2 dated December 6, 1978 rejected their appeal in entirety. The petitioners then went in revision before the Financial Commissioner, Revenue which was disposed of vide order Annexure P3 dated January 17, 1980 and it was held after examining the report of the Collector Agrarian Annexure P5 that the Collector had rightly worked out the first quality of land on the basis of 45% projected intensity of its irrigation. Under these circumstances, the petitioners have invoked the extraordinary writ jurisdiction of this court under Articles 226 and 227 of the Constitution of India on the above referred grounds.

The respondentState has failed to file any return despite grant of adequate opportunity. Thus it has to be taken that the State has not refused the claim of the petitioners regarding surplus area of the land declared in the year 1960 still remaining unutilised.

The writ petitioners in para No. 4 of the writ petition had worked out the first quality of land in the hands of each the petitioners on the basis of formula contained in Rules 8 and 9 read with Schedule A of the Punjab Land Reforms Rules, 1973. On the basis of this projected intensity of the land, it is contended that there was no surplus land in the hands of Dharam petitioner in view of provisions of Section 5 and 7 of Punjab Land Reforms Act, 1972 and only 2.60 hectares of land would remain surplus in the hands of Karam Singh and Balram Singh petitioners. I have gone through the relevant rules and the Schedule with the help of learned counsel for the parties and fail to find any fault with the calculations contained in para 4 of the writ petition. Learned counsel Shri C.M. Makkar, Advocate for the State of Punjab contends that the petitioners had not raised this point anywhere till the case was remanded by the Additional Commissioner vide order. Annexure P7. In other words he contends that this objection regarding the working out of first quality of land was taken before the Collector who had decided the case on January 17, 1978 vide order Annexure P.I. There is no force in this contention. It was the bounded duty of the concerned authorities to have worked out the first quality of land while calculating the permissible area of each of the landowners on the basis of evaluation of land. Thus the mere fact that the petitioners had raised this objection for the first time in the year 1978 is of no consequence as it cannot be said that they had tried to set up a new case.

It is noteworthy that although the Financial Commissioner before deciding the revision petition on January 17, 1980 had called for the report of the Collector regarding the valuation of the Nehri Zamindari land of the petitioners keeping in view the projected intensity of its irrigation and the Collector did submit his report Annexure P5 yet all the same neither this report nor the order of the Financial Commissioner Annexure P3 reveals that the concerned authorities had applied their mind to the facts and circumstances of the case and evaluated the first quality of land of the petitioners in the light of the provisions of rules 8 and 9 read with Schedule A of Punjab Land Reforms Rules, 1973. A perusal of Schedule A reveals that Upper Bari Doab Canal from which the land of the petitioners is being irrigated after the construction of Dhusi Bandh on river Ravi the projected intensity is 45%.

The matter does not rest here as there is no indication from the order of the Collector Annexure P1 or of the Additional Commissioner Annexure P2 or of the Financial Commissioner Annexure P7 that the surplus area of the land declared in the year 1960 under the old Act was utilized. On the other hand the petitioners have taken a specific plea in the writ petition that this area remained unutilized till the filing of this writ petition. The State has failed to rebut it by filing return or by placing any document on the file from the revenue record. Consequently it has to be taken that the surplus area of Dharam Singh petitioner remained unutilized till the coming in to force of Punjab Land Reforms Act, 1972. If that is so then in view of the Full Bench decision of this Court in Ranjit Ram v. The Financial Commissioner, Revenue, Punjab and others, 1981 PLJ 259 the landowner has the option to carve out his permissible area in the light of the provisions of Section 5(1) read with section 7 of the Punjab Land Reforms Act, 1972.

For the reasons accorded above, orders Annexures P1, P2 and P3 of the Collector Agarian, Pathankot, Additional Commissioner, Jullundur, division, Jullundur and Financial Commissioner, taxation, Punjab, Chandigarh respectively are set aside by accepting this petition and the case is remitted to the Collector Agarian, Pathankot for redetermining the surplus area of the petitioners in the light of above observations and in particular keeping in view the provisions of Rules 8 and 9 read with Schedule A of the Punjab Land Reforms Rules, 1973 for evaluating the first quality land of the petitioner. The Collector shall also keep in view para 4 of this writ petition wherein such evaluation has been done by the petitioners while doing so. A copy of this writ petition alongwith a copy of this order be sent to the Collector for doing the needful. Parties through their counsel are directed to appear before the Collector on December 10, 1992. The writ petition is accepted accordingly but without any order as to costs.

Revisions allowed.